A Torturous Brief

So, it has been deemed torture shall be the latest drop in the ongoing Chinese water torture of the administration. Abu Ghraib having almost run its course (although the press is trying to milk it), a change was needed. After all, if one harps on the story too long, sooner or later the peasants will remember that it was the Army that informed the media, not 60 Minutes II. So, what to do? The torture meme is really too good to lay aside so quickly. Ah, what about that other prisoners?

So here we are again. First, we have a WaPo editorial to slam the administration.

THE BUSH administration assures the country, and the world, that it is complying with U.S. and international laws banning torture and maltreatment of prisoners. But, breaking with a practice of openness that had lasted for decades, it has classified as secret and refused to disclose the techniques of interrogation it is using on foreign detainees at U.S. prisons at Guantanamo Bay and in Afghanistan and Iraq.

So, breaking some practice lasting for nebulous decades in which we were not at war means that the administration is acting in bad faith. No alternatives allowed. Nothing to suggest that broadcasting methods and techniques to those who might try to resist them is unwise.

This week, thanks again to an independent press, we have begun to learn the deeply disturbing truth about the legal opinions that the Pentagon and the Justice Department seek to keep secret.

Ooh, this sounds ominous. Whatever could it be?

In a paper prepared last year under the direction of the Defense Department’s chief counsel, and first disclosed by the Wall Street Journal, the president of the United States was declared empowered to disregard U.S. and international law and order the torture of foreign prisoners.

Oh, the lawyers have been scribbling again! About what we wonder? Let’s go to the actual document:

The laws of war contain obligations relevant to the issue of interrogation techniques and methods. It should be noted, however, that it is the position of the U.S. Government that none of the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Third Geneva Convention) apply to al Qaida detainees because, inter alia, al Qaida is not a High Contracting Party to the Convention. As to the Taliban, the U.S. position is that the detainees do not qualify as prisoners of war under Article 4 of the Geneva Convention. The Department of Justice has opined that the Geneva Convention Relative to the Protection of Civilian Personnel in time of War (Fourth Geneva Convention) does not apply to unlawful combatants.

So this is just the now very old (and settled) discussion of the applicability of the Geneva Convention to the detainees at Gitmo. Or is it?

There is no justification, legal or moral, for the judgments made by Mr. Bush’s political appointees at the Justice and Defense departments. Theirs is the logic of criminal regimes, of dictatorships around the world that sanction torture on grounds of “national security.”

We seem to have made a leap here. Who exactly is sanctioning torture? The implication is that it is the Administration, and despite hip-deep innuendo, no actual evidence is been presented. But let’s really turn up the gas anyway:

The news that serving U.S. officials have officially endorsed principles once advanced by Augusto Pinochet brings shame on American democracy—even if it is true, as the administration maintains, that its theories have not been put into practice.

A South American dictator! How’s that for a straw boogie man? And note the weasel words of ‘news’ and ‘if true.’ Where is this all leading?

Perhaps the president’s lawyers have no interest in the global impact of their policies—but they should be concerned about the treatment of American servicemen and civilians in foreign countries.

Right. Our terrorist enemies have been so restrained when dealing with our troops or civilians. I’m sure these and other acts have only been committed because Administration lawyers gave the green light to sleep deprivation and blaring loudspeakers.

On the other side is the Attorney General plainly stating that this is not the behavior or policy of the Administration:

Attorney General John Ashcroft, in a letter Tuesday to Sen. Patrick Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee, laid out the administration’s legal reasoning on the issue in greater detail than before and denied that the Justice Department was condoning torture.

“The department has done no such thing,” Ashcroft said in the letter.

Ashcroft told senators at a Judiciary Committee hearing Tuesday that his department will vigorously investigate those accused of it who are outside military jurisdiction.

Hmm, hard to reconcile the two positions. On the one hand, you have a side which claims the Aministration has condoned torture. On the other, the Administration saying it doesn’t. Which one to believe? Let’s lay aside the partisanship for a moment. It’s enough to realize the WaPo has not forgotten the time it brought down a President, and the barking CSJ grads dream of a repeat. Then there are the Democratic Senators of the judiciary committee, among the most partisan in Congress. Nor should Ashcroft be let off the hook – he’s a man of the Administration. No, this one’s for the rest of us.

For those generally pre-disposed to believe the worst of President Bush, this seems like good news. It sounds really bad, and the media can spool it up to a big story if they push it. Or, for those who are pre-disposed to believe only good of the President, this is bad news, and for the same reason. However, for those inclined to look at it objectively, it appears in a very different light: lawyers briefing their client on a topical issue. Said legal advice – self-righteously dismissed by the WaPo – may be right, wrong, or somewhere in between. It may be moral or immoral. None of which matters. Legal advice is by definition solely for the benefit of the client. And it is up to the client to decide how to act on it.

So where does that leave us? Well, right now, it appears the Bush Administration has rejected the advice of the attorneys. If you believe otherwise, then you also have to believe that AG Ashcroft has just lied to Congress. That may very well be true, and given how easy it would be to rat him out, he would be in some very hot water. (A lot of people no doubt believe Bush, Ashcroft and all the others tell three lies before breakfast, but let’s stipulate lying to a Congressional Committee goes above and beyond the garden variety lie.) We’ll know soon enough. But if the Administration has rejected the advice, and, as it claims, acted within the boundaries of the law, then we have the the senate Democrats and the liberal media – the Usual Suspects – playing their usual games.